In this
putative class action, Plaintiffs Mike Kloppel and Wilson
Adams allege that Defendants HomeDeliveryLink, Inc.
(“HDL”), Sears Holdings Corporation, and Sears,
Roebuck and Co. (together, “Sears”) misclassified
them as independent contractors rather than employees and
took illegal deductions from their pay while they performed
delivery services for Defendants in New York State.

Defendants
move to dismiss Plaintiffs' Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). ECF. Nos. 12, 20.
Additionally, Plaintiffs move to strike part of Defendant
HDL's reply brief. For the reasons stated below,
Sears' Motion to Dismiss is GRANTED in full and
HomeDeliveryLink's Motion to Dismiss is DENIED in part
and GRANTED in part. Plaintiffs' Motion to Strike is
DENIED in full.

Plaintiffs,
along with other similarly situated individuals they seek to
represent, delivered Sears merchandise to customers'
homes throughout New York State. Plaintiffs contracted with
Defendant HDL, a third party logistics provider, rather than
directly with Defendant Sears. Plaintiffs allege that
Defendant HDL treated them as independent contractors even
though they were rightfully employees under New York law.
They further allege that Defendant HDL unlawfully deducted
“certain expenses directly from the compensation it
[paid to Plaintiffs], including when HDL determine[d], in its
sole discretion, that a delivery ha[d] been made in a manner
it deem[ed] to be unsatisfactory (e.g., damaged goods, damage
to customer property).” ECF No. 9 at 7. HDL
“would also deduct other expenses from the compensation
it pa[id] such as the cost of truck rental and fuel, ”
and “the costs of workers' compensation insurance
and general liability insurance from the compensation it paid
to” Plaintiffs. Id. Finally, Plaintiffs allege
that “Defendants failed to furnish Plaintiff[s] . . .
with an accurate statement of wages listing hours worked,
rates paid, gross wages, allowances, deductions taken, and
net wages paid.” Id.

DISCUSSION

I.
Legal Standard

Federal
Rule of Civil Procedure 12(b)(6) provides that a party may
move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In reviewing a motion to dismiss, a court
“must accept as true all of the factual allegations
contained in the complaint, ” Bell Atl. Corp. v.
Twombly,550 U.S. 544, 572 (2007), and “draw all
reasonable inferences in Plaintiff's favor.”
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d
Cir. 2011). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The application of this standard is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679.

II.
Defendant HDL's Motion to Dismiss

A.
The Fair Play Act

Plaintiffs
argue that under the New York State Commercial Goods
Transportation Industry Fair Play Act (“Fair Play
Act”), N.Y. Lab. Law § 862-b, they were rightfully
employees and not, as Defendant HDL labeled them, independent
contractors. HDL's wage deductions and failure to provide
wage statements therefore violated several New York labor
laws.

The
Fair Play Act, which became effective in New York on April
10, 2014, requires an employer to classify “[a]ny
person performing commercial goods transportation services
for a commercial goods transportation contractor . . . as an
employee, ” and not as an independent contractor. N.Y.
Lab. Law § 862-b(1). There is an exception to this
presumption if the employer demonstrates that the worker: 1)
is free from control and direction over the performance of
his work; 2) performs work that is outside the usual course
of business or is outside all of the employer's places of
business, unless the employer contracts with third parties to
place employees; and 3) is in an independently established
trade, occupation, profession, or business. N.Y. Lab. Law
§ 862-b(1)(a-c). If the employer can demonstrate that a
worker satisfies all three conditions, it may treat him as an
independent contractor instead of as an employee.
Consequently, the worker will not enjoy N.Y. Lab. Law
§§ 198-b and 193's protections from wage
deductions because those laws only apply to employees. For
the same reason, the worker is not entitled to a wage
statement under N.Y. Lab. Law § 195.

Even if
an employer cannot satisfy the above three-prong test, the
Fair Play Act provides an additional test through which an
employer may establish that a worker is an independent
contractor: the “separate business entity” test.
N.Y. Lab. Law § 862-b(2)(a-k). If the employer can
establish that the worker meets all eleven factors of the
separate business entity test, including that the worker or
“business entity” owns or leases the
“capital goods and gains the profits and bears the
losses of the business entity” and “has the right
to perform similar services for others on whatever basis and
whenever it chooses, ” the employer may deem the
business entity an independent contractor. Id.
Again, N.Y. Lab. Law §§ 198-b, 193, and 195 would
not protect the business entity.

B.
Preemption

Defendant
HDL argues that the Federal Aviation Administration
Authorization Act (“FAAAA”) expressly preempts
the Fair Play Act. Plaintiffs argue in response that the
FAAAA's preemption clause does not cover the Fair Play
Act.

A
defendant must plead and prove the affirmative defense of
federal preemption. See Met. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987) (“Federal
pre-emption is ordinarily a federal defense to the
plaintiff's suit.”). The court may resolve the
issue of preemption on a motion to dismiss if the facts
necessary to determine the issue clearly appear on the face
of the complaint. Fed.R.Civ.P. 12(b)(6). The defendant need
not present empirical evidence for the court to find
preemption, but the defendant should demonstrate the real and
logical effects of the state statute from which the court may
find that the statute is preempted. Mass. Delivery
Ass'n v. Coakley, 769 F.3d 11, 20 (1st Cir. 2014);
Costello v. BeavEx, Inc., 810 F.3d 1045, 1055 (7th
Cir. 2016).

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